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The National Labor Relations Act (NLRA) provides protection for employees in both union and non-union organizations when they engage in certain activities, including:
- Self-organization
- Forming, joining, or assisting labor unions
- Bargaining collectively with regard to wages and working conditions through representatives of their own choosing
- Engaging in other protected "concerted activities," that is, to act together for purposes of collective bargaining or other mutual aid or protection
- Refraining from any of these activities
Protected activity under the NLRA doesn't have to directly relate to union activity. If employees are discussing a policy, their pay, their management, or other terms and conditions of employment, there's a good chance they'll be protected, even if there's no immediate mention of unionization. One employee acting on behalf of other employees also may be protected.
Employers are understandably concerned about their reputations, and the world of social media expands the potential for employees to tarnish those reputations publicly. For this reason, it's important to become familiar with the types of activity that the NLRA does and does not protect. While employers do have to be cautious, they don't have to tolerate employees who post disparaging remarks on social media if the comments don't address terms and conditions of employment with other employees.
What's not protected
While the NLRA does protect employees in many instances, it does not allow employees to say whatever they want about an organization. One of the keys is whether or not the employee activity is "concerted" in nature and whether it is for mutual aid or protection. Employees must seek to engage other employees in a discussion about working conditions or the activity may not be protected.
The National Labor Relations Board (NLRB) defines activity as "concerted" when an employee acts "with or on the authority of other employees, and not solely by and on behalf of the employee himself." So, for example, consider an employee who posts disparaging remarks about his employer on Facebook. The employee does not involve (or seek to involve) any of his coworkers in his online rant. In this situation, the employee's actions probably won't be protected under the NLRA.
Discussions that have nothing to do with the terms and conditions of employment also do not qualify for protection under the NLRA. If, on the other hand, the employee's Facebook comments drew related commentary from coworkers, and the conversation had to do with working conditions, the actions of the original poster and the commenting coworkers would likely qualify for protection.
In one example, a newspaper employee used his Twitter account to criticize other employees as well as an area television station. In this situation, the NLRB found that the employee was not engaged in protected, concerted activity because he was not discussing terms and conditions of employment and was not seeking to engage his coworkers. Therefore, the employer did not violate the NLRA by disciplining the employee.
Overly restrictive policies
Employers can violate the NLRA even if they don't take adverse action against an employee who discusses terms and conditions of employment with other employees. A policy that affects an employee's rights to engage in such activities can constitute an unfair labor practice even if it is never violated and/or enforced.
As such, company policies should not forbid employees from discussing terms and conditions of employment. For example, a somewhat common practice is to prohibit employees from discussing wages with one another. This would be considered an unfair labor practice under the NLRA as it restricts employees' rights to discuss terms and conditions of employment.
Social media has provided a new backdrop for employees to discuss their employers. However, an employer can have a policy regarding employees' representation of the company on social media. A policy may indicate that employees must not make posts on social media that are defamatory or offensive with regard to the company. The NLRB recently indicated that such a social media policy is not in violation of the NLRA unless it is meant specifically to target concerted activity.
However, before enforcing this type of policy, an employer must consider whether an offensive or derogatory post also qualifies as protected concerted activity. If the activity is protected, an employer may need to ignore profanity or other offensive language. The NLRB has indicated that the standard is high for employees to go so far in being offensive or slanderous that their otherwise protected activity is no longer secured.
Since employers cannot attempt to prevent employees from organizing (and that includes organizing via social media), a broad policy that prohibited any mention of the employer or related parties on social media would likely violate the NLRA, whether or not it's enforced.